How to defend your content against predatory YouTube copyright abuse.
Recently YouTube has run rampant with false or unfair copyright claims on content creator videos. Despite the fact that the content in the videos not infringing on any copyrights, corporations who believe their copyrights may have been violated are filing copyright claims with YouTube and unfairly taking the monetization away from content creators.
YouTube is required to comply with the DMCA (Digital Millennium Copyright Act) in their copyright strike policy, meaning YouTube can avoid any liability, so long as they follow certain rules in the DMCA.
If your video has been demonetized on YouTube or was improperly taken down, what can you do?
Recently, a prominent YouTuber, Angry Joe, made a video giving the upcoming Lionsgate film, Hellboy, a negative review. It quickly received a copyright claim from Lionsgate Films claiming the video infringed on their copyright because it used portions of the trailer in his review. Joe reported that he appealed the claim, saying his video falls under fair use. His appeal was then sent to Lionsgate, who denied the appeal.
There are two main issues with this picture, so let’s tackle them one at a time.
Fair use is a doctrine of copyright law which allows individuals to use portions of copyrighted material for a limited and “transformative” purpose. This type of use does not need to be approved by the copyright owner and is a defense to claims of copyright infringement.
While, there aren’t any solid definitions of what a transformative purpose actually is, there are guidelines and prior decisions giving a decent understanding of what falls under transformative purpose.
One of the most common instances of a transformative purpose is commentary and criticism. If you are critiquing a copyrighted work (like, say, in a review), you can use portions of a copyrighted work in your review. It is difficult, if not impossible, to review a work without using excerpts of it to show what it is your critiquing. What Angry Joe did in his video is, without a doubt, criticism and thus falls under fair use.
YouTube and DMCA
As outlined in a previous blog post, under the DMCA in order to receive safe harbor YouTube must receive copyright claims, inform the other party, and then receive a counter-notice of the copyright claim from the original poster. Then if after 10-14 business days the original copyright claim owner does not file a lawsuit, YouTube can put the video back up.
In Angry Joe’s case, YouTube clearly did not follow the outlined DMCA policy. YouTube instead sent the counter-claim notice directly to Lionsgate, giving them the option to grant or deny Joe’s claim. This means that YouTube has potentially opened themselves up to liability by giving Lionsgate the revenue from Angry Joe’s video, even though it clearly falls under the fair use doctrine.
What can Content Creators do about YouTube Copyright Abuse?
Fortunately, if you find yourself in a situation similar to Angry Joe, you have options. Under the DMCA Section 512(f), users have the ability to hold copyright owners accountable if they send DMCA notices in bad faith. A Ninth Circuit case, Lens v. Universal, further explained DMCA section 512(f), saying that the DMCA requires copyright owners to consider whether the works they are filing copyright claims for are lawful and fair uses before sending take-down notices targeting them. This means that if a video CLEARLY falls under a category of fair use, someone claiming copyright infringement is accountable and acting in bad faith when they issue the copyright claim.
But, let’s cut to the point, what does this all mean?
Essentially, if a company is using copyright take-down notices to bully you into taking down a video, even though they KNOW your work falls under fair use, you’re entitled to damages from them in a lawsuit. Courts have issues awards in false DMCA take-down claims upward of $100,000 per claim. Not only can you receive damages for the amount of revenue you lost if the video is taken down or monetized to the wrong party, but you can also look for additional punitive damages to punish the company for their bad faith actions, and even have them pay your attorney’s fees.
If any of your content has been improperly taken down off YouTube, or your monetization was taken away even though your video falls under fair use, don’t hesitate to contact us at Anathem Law. Let us get you the justice you deserve.